DENTAL ACCESS PROGRAMME
PERSONAL DENTAL SERVICES PLUS AGREEMENT
USER GUIDE
1
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© Beachcroft LLP 2009
Draft: 18 November 2009
104903276_3.DOC
104903276-9
Table of contents
Clause heading and numberPage number
1.BACKGROUND......
2.STRUCTURE OF THE AGREEMENT
3.clause by clause guidance and risk allocation matrix
ANNEX 1......
ANNEX 2......
DENTAL ACCESS PROGRAMME
PERSONAL DENTAL SERVICES PLUS AGREEMENT – USER GUIDE
1.BACKGROUND
1.1The purpose of this User Guide to the Personal Dental Services Plus Agreement (the "Agreement") is to help you understand and construct the Agreement. PCT leads for Dental Access procurements should familiarise themselves with the terms of the Agreement and the contents of this User Guide.
1.2This User Guide is intended to:
1.2.1provide you with guidance about how you can adapt the Agreement by determining which of the terms of the Agreement, including the schedules, may or may not apply according to your requirements;
1.2.2ensure consistency across the Dental Access Programme and establish standardised robust commercial terms;
1.2.3assist you to make commercial decisions to achieve affordability, quality and value for money; and
1.2.4generally assist you by providing an explanation of the clauses and schedules of the Agreement.
1.3This User Guide is intended as general guidance and should always be considered with reference to your specific requirements.
1.4Definitions used in this User Guide are those used in the Agreement.
2.STRUCTURE OF THE AGREEMENT
2.1The guidance notes on the terms of the Agreement are colour coded to assist you in identifying which terms are mandatory and which terms are non-mandatory.
2.2The Agreement contains three types of provisions (identified by the colours below):
2.2.1those which are mandatory and therefore must be included and cannot be varied. These provisions include in particular those which must be included in order for the Agreement to comply with the National Health Service (Personal Dental Services Agreements) Regulations 2005 (the "Regulations");
2.2.2those which are strongly recommended and in some cases must be completed for the Agreement to operate; and
2.2.3those which are entirely optional, variable and should be specific to your particular requirements.
2.3Where you decide not to use a schedule or a particular clause, you should leave the schedule or clause heading in place (where appropriate) and insert the words "NOT USED" underneath the heading/against the relevant clause number. This will preserve the cross-referencing in the Agreement.
3.clause by clause guidance and risk allocation matrix
Mandatory and non-variable
Strongly recommended
Non-mandatory, optional and variable
Status / Clause/Schedule No / Clause/ Schedule / Guidance
Conditions Precedent Agreement / - / The Conditions Precedent Agreement (the "CP Agreement") is available for use by PCTs where there are conditions which must be complied with by either or both parties prior to entering into the PDS Plus Agreement (known as "conditions precedent"). The types of conditions precedent which may be specified in the CP Agreement could include, for example, the completion of lease arrangements for the Practice Premises, or the satisfactory completion of an inspection of the Practice Premises by the PCT's Dental Adviser. Some further examples of conditions precedent are included in the CP Agreement.
Under the CP Agreement the PDS Plus Agreement will not come into force until the conditions precedent have been satisfied or waived as confirmed by the PCT in writing. The CP Agreement also provides that the PDS Plus Agreement annexed to the CP Agreement will not take effect if the conditions precedent are not fulfilled to the satisfaction of the PCT within 60 days of signature of the CP Agreement. This timescale can be amended by the PCT if a shorter or longer timescale is considered appropriate.
Any steps (conditions precedent) which must be complied with before the annexed PDS Plus Agreement can come into force should be inserted into Clause 2.2 of the CP Agreement as sub-clauses. No special form of words are needed to create a condition precedent. However, each condition should be clear in specifying what is required to fulfil the condition and who is responsible for satisfying the condition. The conditions precedent which are for completion by the Contractor must be within the control of, and capable of achievement by, the Contractor.
PDS Plus Agreement
Cover Page / - / Insert the name of your PCT prior to issuing the Agreement with the ITT.
Insert the name of the Contractor once they are appointed. The date should be inserted once the Agreement has been signed by both the PCT and the Contractor.
Contents / - / The table of contents should be updated once the Agreement has been finalised immediately prior to contract signature of the Agreement.
1 / Definitions and Interpretation / Clause 1 is non-mandatory but should be included in order for the Agreement to work. It is strongly recommended that no amendments are made to this section of the Agreement without taking legal advice.
2 / Status of Agreement / Clause 2.1 must be amended to reflect the particular circumstances as to whether the Contractor is a Health Service Body for the purposes of the NHS Act 2006.
If the Contractor isa Health Service Body the Agreement will be a NHS Contract for the purposes of section 9 of the NHS Act 2006 and will not be legally enforceable in the courts. If the Contractor is not a Health Service Body, the Agreement will be legally enforceable in the courts.
Clauses 2.3 and 2.4 should be removed and marked "Not Used", unless the Contractor is the Provider Arm of the PCT.
Clause 2.5 should be removed and marked "Not Used", unless the Contractor is a number of individuals.
3 / Commencement and Duration / Clause 3 specifies the start date of the Agreement. There are no provisions in this Agreement setting out "conditions precedent", which must be met by the Contractor before the Agreement will come into force. If the PCT wishes to include conditions precedent, for example, if there is to be a mobilisation period during which the Contractor will complete various tasks to prepare for delivery of the Services (such as, carrying out works to premises or recruiting staff), the template "Conditions Precedent Agreement" can be used. This template Agreement is available to PCTs from the Dental Access website (see page 4 of this Guide for further information). Alternatively, the PCT can amend Clause 5 (see below) and the definitions in Schedule 1 as appropriate to provide that Services will start from the "Service Commencement Date" rather than the "Commencement Date".
PCTs will need to insert the desired term of the Agreement by amending the definition of "Expiry Date" in Schedule 1. A term of 5 to 10 years is recommended. The number of years of any extension should be inserted at Clause 3.2. The PCT must also complete the definition of "Commencement Date" in Schedule 1 and "Service Commencement Date" where it is to be used.
The duration and any extension period must tie in with the tender documentation. The PCT will be open to legal challenge where it extends the duration of the Agreement from that which was set out in the tender documentation, (including by way of an extension).
4 / Warranties / Clause 4 sets out various warranties which the Contractor must give, for example in relation to the Contractor's eligibility to enter into the Agreement. The Contractor bears the risk of satisfying the warranties in Clause 4.
The words in square brackets in Clause 4.1(d) will need to be included if the Contractor is a qualifying body.
5 / Services and Attendance on Patients / Clause 5 imposes obligations on the Contractor in relation to the performance of the Services, including compliance with the KPIs, relevant guidance and quality standards. Clause 5.1 should be amended to reflect when Services will commence.
Clause 5.2 should be amended as appropriate, depending upon whether orthodontic services are to be provided under the Agreement.
Clause 5.5(c) places obligations on the Contractor to ensure that agreements entered into with third parties in relation to the services can be assigned to the PCT on termination or expiry of the Agreement (to provide continuity of service). This provision should be reviewed carefully and amended or removed to ensure it reflects the local circumstances. Please refer to the Premises Guide for further information.
6 / Quality Standards / The Contractor is obliged to meet various standards in relation to the provision of the Services including those set out in Schedule 2 (Service Requirements).
Clauses 6.1 and 6.2 are mandatory and must not be amended as they reflect provisions in the Regulations.
7 / Level of Skill / This mandatory Clause obliges the Contractor to perform its obligations in a timely manner and with reasonable care and skill.
8 / Premises / Clause 8 deals with the Practice Premises from which the Services will be delivered. Elements of Clause 8 are mandatory to the extent that they require the Contractor to ensure that the premises are suitable for the delivery of the Services and sufficient to meet the needs of its patients. These provisions reflect the Regulations.
The non-mandatory elements relate to the parties entering into the premises documents and complying with their respective obligations in Schedule 6 (Premises and Equipment) and Schedule 9 (Insurance).
The Contractor may have adopted its own premises solution (which may be existing or new premises) or the PCT may have mandated or made available premises from which the Contractor shall provide the Services. Clause 8.1 will need to be amended according to the local solution and Clause 8 as a whole will need to be reviewed to ensure it reflects the requirements of the local scheme. For example, Clauses 8.1, 8.4 and 8.8 to 8.11 are only required where the PCT owns or has a lease of the Practice Premises which it then lets or sub-lets to the Contractor.
If the PCT does not mandate a particular premises solution at the outset of the procurement, the premises solution proposed by the preferred bidder and accepted by the PCT should be reflected in Clause 8. The Premises Guide provides further information on the amendments which may be required. It is strongly recommended that you obtain legal advice on the property solution(s) as early in the procurement process as possible to ensure that there is enough time for the formal property requirements (including searches and any landlords consent where applicable) to be obtained in a timely manner.
Schedule 6 must detail the specific property and equipment arrangements.
9 / Telephone Services / Clause 9 is mandatory and should not be varied.
Any contract or arrangement for telephone services must not charge premium rates to callers who contact the Practice in relation to the Agreement or Services under it.
10 / Clinical Reports & Co-Operation / Clause 10 imposes obligations on the Contractor relating to clinical reporting and co-operation with other providers of clinical services. The PCT must also use reasonable endeavours to assist the Contractor to co-operate with clinicians treating patients in the interests of providing an integrated patient pathway.
11 / Not Used
12 / Infection Control / Clause 12.1 is mandatory to the extent that the Contractor must have in place appropriate arrangements for infection control and decontamination.
The non-mandatory elements of Clause 12.1 require the Contractor to comply with various guidance in relation to infection control and decontamination.
13 / Persons who shall Perform the Services / Clause 13 sets out mandatory requirements on the Contractor in relation to the qualification and experience of dental practitioners and Dental Health Professionals performing Services under the Agreement. This Clause reflects the requirements of the Regulations and must not be varied.
14 / Training / This mandatory Clause reflects the Regulations.
15 / Not Used
16 / Not Used
17 / Signing of Documents / Clause 17 reflects the requirements of the Regulations and places certain obligations on the Contractor as to the signing of Prescription Forms, etc.
18 / Appraisal and Assessment / Clause 18.1 is mandatory and relates to the imposition of appropriate appraisal and assessment systems for dental practitioners.
19 / Sub-Contracting / Clause 19 is non mandatory but is strongly recommended to be included as it provides an element of control for the PCT in terms of sub-contracting by the Contractor of non-clinical matters. It provides for details of approved sub-contractors of non-clinical matters to be inserted in Schedule 16 and any sub-contracting outside of this (except sub-contracting of clinical matters which is dealt with separately under Clause 19A) requires the prior written consent of the PCT.
19A / Sub-Contracting of Clinical Matters / Clause 19A is mandatory and reflects the provisions of the Regulations.
The Contractor is required to take certain steps before sub-contracting its obligations in relation to clinical services to a sub-contractor and provide certain information to the PCT before doing so. Sub-contractors in this case are likely to be individual dental practitioners.
The PCT may consider adding the details of these sub-contractors to Schedule 16 for clarity.
20 / Prescribing / Clauses 20.1 to 20.4 are mandatory and must not be varied as they reflect the requirements of the Regulations.
Clauses 20.5 and 20.6 are not mandatory but it is recommended that they are included.
21 / Not Used
22 / Not Used
23 / Not Used
24 / Not Used
25 / Not Used
26 / Excessive Prescribing / This mandatory Clause prohibits the prescribing of drugs, medicines or appliances whose cost or quantity is in excess of that which is reasonably necessary for the proper treatment of the Patient. This reflects the requirements of the Regulations.
27 / Not Used
28 / Patients / This Clause places an obligation on the Contractor to provide Services to the persons identified in Schedule 2 (Service Requirements).
29 / Patient Records / This mandatory Clause reflects the requirements of the Regulations and places obligations on the Contractor in relation to Patient Records.
30 / Confidentiality of Personal Data / Clause 30.1 is mandatory and must not be varied.
Clauses 30.2 and 30.3 are non mandatory however it is strongly recommended that they are included in the Agreement as they place obligations on the Contractor to comply with Data Protection Legislation, the BDA Good Practice Scheme.
31 / Provision of Patient Information and Practice Leaflet / This mandatory Clause reflects the Regulations and sets out the Contractor's obligations in respect of provision of information to the PCT, information which must be displayed at the Practice Premises and the obligation to compile a Patient Information Leaflet (and comply with Schedule 12 (Patient Information Leaflet) in doing so).
32 / Not Used
33 / Inquiries about Prescriptions and Referrals / This reflects the Regulations and with the exception of Clause 33.4 (which is recommended) this Clause is mandatory.
34 / Fees, Charges and Financial Interests of the Contractor / This mandatory Clause relates to the Contractor disregarding its own financial interests in making decisions relating to referrals or prescriptions.
34A / Evidence of Exemption under the Act / Clause 34A is mandatory and reflects the requirements of the Regulations.
35 / Notification of a Course of Treatment and Orthodontic Course of Treatment / This mandatory Clause reflects the provisions of the Regulations. It requires the Contractor to submit certain forms in relation to the completion of Courses of Treatment and sets out the information to be included.
36 / Annual Report and Review / The PCT must provide the Contractor with an annual report and must then arrange an annual review with the Contractor and produce a final written record of the annual review. This Clause reflects the Regulations and must not be varied.
37 / Notifications to the PCT / The Contractor must notify the PCT on the occurrence of certain events (e.g. any serious incident likely to affect the Contractor’s performance).
Clauses 37.1(c) to (j) are non-mandatory but are recommended. Clause 37.1(g) should be included if the Practice Premises are PCT owned or leased.
38 / Notification of Deaths / This Clause specifies the timescales and details the Contractor must give the PCT in any report in relation to patient deaths.
38A / Notifications to Patients following a variation of the Agreement / This Clause reflects the requirements of the Regulations.
39 / Entry and Inspection by the PCT / The mandatory requirements relate to the conditions that must be met before the PCT is permitted to enter and inspect the Practice Premises. The non-mandatory requirement in Clause 39.4 relates to the PCT’s right to conduct an audit of the Contractor’s operations and facilities but it is strongly recommended that it is included.
40 / Entry and Inspection by Local Involvement Network Representatives / This Clause is required by the Regulations.
41 / Entry and Inspection by the Care Quality Commission / This mandatory Clause requires the Contractor to allow persons authorised by the Care Quality Commission to enter and inspect the Practice Premises.
42 / Counter Fraud and Security Management / This Clause requires the Contractor to give access to the NHS Counter Fraud and Security Management Service to the Practice Premises and any records relevant to the detection and investigation of fraud and corruption. It also requires the Contractor to put in place security arrangements and to inform the PCT promptly if it becomes aware of any suspected fraud or corruption involving Patients or public funds.
43 / Not Used
44 / Payment under this Agreement / The PCT is required to pay Charges to the Contractor in accordance with Schedule 3 (Payment Mechanism) and, any other conditions relating to payment contained in directions from the Secretary of State.
45 / Not Used
46 / Clinical Leadership and Governance / The mandatory requirement requires the nomination of a person who performs or manages services under the Agreement with responsibility for clinical governance. There are also obligations on the Contractor to appoint the leadership roles, as set out in Clause 46.3.
The documents refer to a system of clinical leadership with 3 levels – there is no requirement that these roles are carried out by separate individuals.
47 / Indemnity and Limitation of Liability /